Incentive Performance Rights Plan
Released
Released
Announcement PDF
FULCRUM LITHIUM LTD ACN 665 528 307
(Company)
INCENTIVE PERFORMANCE RIGHTS PLAN
Approved by the Board of Directors on 15 September 2023
TABLE OF CONTENTS
1.
DEFINITIONS AND INTERPRETATION ................................................................................. 3
1.1
1.2
Definitions .................................................................................................................. 3
Interpretation............................................................................................................. 5
2.
PURPOSE ......................................................................................................................... 6
3.
COMMENCEMENT AND TERM .......................................................................................... 6
4.
OFFER OF PERFORMANCE RIGHTS .................................................................................... 6
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
4.10
4.11
5.
ACCEPTANCE OF OFFER .................................................................................................... 8
5.1
5.2
5.3
5.4
6.
Issue of Shares ......................................................................................................... 10
Cash Payment Facility .............................................................................................. 11
Blackout Period, Takeover Restrictions and Insider Trading .................................... 11
Withholding ............................................................................................................. 11
Rights attaching to Shares........................................................................................ 11
Share ranking ........................................................................................................... 11
Quotation on ASX ..................................................................................................... 11
Sale of Shares ........................................................................................................... 12
RESTRICTION ON DEALING IN SHARES ............................................................................ 12
9.1
9.2
9.3
9.4
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Vesting Conditions ..................................................................................................... 9
Vesting Condition Exceptions..................................................................................... 9
Exercise on Vesting .................................................................................................. 10
One or Several Parcels ............................................................................................. 10
ISSUE OF SHARES OR CASH PAYMENT ............................................................................. 10
8.1
8.2
8.3
8.4
8.5
8.6
8.7
8.8
9.
Grant of Performance Rights ..................................................................................... 8
Approvals ................................................................................................................... 9
Restrictions on Transfers, Dealings and Hedging ....................................................... 9
VESTING AND EXERCISE OF PERFORMANCE RIGHTS .......................................................... 9
7.1
7.2
7.3
7.4
8.
Acceptance of Offer ................................................................................................... 8
Board’s right to reject ................................................................................................ 8
Participant Agrees to be Bound ................................................................................. 8
Lapse of Offer ............................................................................................................. 8
GRANT OF PERFORMANCE RIGHTS ................................................................................... 8
6.1
6.2
6.3
7.
Offer ........................................................................................................................... 6
Offer Document ......................................................................................................... 7
Personal Offer ............................................................................................................ 7
Nominee..................................................................................................................... 7
Minimum Contents of Offer Document ..................................................................... 7
Number of Performance Rights ................................................................................. 7
No Consideration ....................................................................................................... 7
Vesting Conditions ..................................................................................................... 7
Share Restriction Period............................................................................................. 8
Deferred Taxation ...................................................................................................... 8
Quotation of Performance Rights .............................................................................. 8
Restriction Period..................................................................................................... 12
Waiver of Restriction Period .................................................................................... 12
No disposal of Restricted Shares.............................................................................. 12
ASX Imposed Escrow ................................................................................................ 12
i
9.5
9.6
10.
Enforcement of Restriction Period........................................................................... 12
Lapse of Restriction Period ...................................................................................... 13
LAPSE OF PERFORMANCE RIGHTS ................................................................................... 13
10.1
10.2
Lapsing of Performance Right .................................................................................. 13
Fraud and Related Matters ...................................................................................... 14
11.
EXCHANGE DUE TO CHANGE OF CONTROL ...................................................................... 14
12.
PARTICIPATION RIGHTS AND REORGANISATION ............................................................. 14
12.1
12.2
12.3
12.4
Participation Rights .................................................................................................. 14
Adjustment for Reorganisation ................................................................................ 15
Notice of Adjustments ............................................................................................. 15
Cumulative Adjustments .......................................................................................... 15
13.
OVERRIDING RESTRICTIONS ON ISSUE AND EXERCISE...................................................... 15
14.
AMENDMENTS .............................................................................................................. 15
14.1
14.2
14.3
Power to amend Plan ............................................................................................... 15
Adjustment to Performance Right Terms ................................................................ 15
Notice of amendment .............................................................................................. 16
15.
TRUST ........................................................................................................................... 16
16.
RISK LIES WITH PARTICIPANTS........................................................................................ 16
16.1
16.2
17.
Independent Advice ................................................................................................. 16
Risk of Loss ............................................................................................................... 16
MISCELLANEOUS............................................................................................................ 16
17.1
17.2
17.3
17.4
17.5
17.6
17.7
17.8
17.9
17.10
17.11
17.12
17.13
17.14
17.15
Rights and obligations of Participant ....................................................................... 17
Power of the Board .................................................................................................. 17
Dispute or disagreement.......................................................................................... 18
ASIC relief ................................................................................................................. 18
Non-residents of Australia ....................................................................................... 18
Communication ........................................................................................................ 18
Attorney ................................................................................................................... 19
Costs and Expenses .................................................................................................. 19
Adverse Tax .............................................................................................................. 19
Data protection ........................................................................................................ 19
Error in Allocation .................................................................................................... 19
No fiduciary capacity ................................................................................................ 20
ASX Listing Rules ...................................................................................................... 20
Enforcement ............................................................................................................ 20
Laws governing Plan ................................................................................................. 20
SCHEDULE 1 – PERFORMANCE RIGHTS PLAN – OFFER DOCUMENT .................................................. 21
SCHEDULE 2 – PERFORMANCE RIGHTS PLAN APPLICATION FORM .................................................. 23
SCHEDULE 3 – NOTICE OF EXERCISE OF PERFORMANCE RIGHTS ...................................................... 25
SCHEDULE 4 –DISCLOSURE DOCUMENTS PRODUCED BY COMPANY IN PREVIOUS 12 MONTHS ........ 26
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FULCRUM LITHIUM LTD
INCENTIVE PERFORMANCE RIGHTS PLAN
The Directors are empowered to operate the Fulcrum Lithium Ltd Incentive Performance Rights Plan (Plan)
on the following terms and in accordance with the ASX Listing Rules (where applicable).
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
For the purposes of the Plan, the following words have the following meanings.
Application Form means the Application Form by which an Eligible Participant or Nominee (as
applicable) applies for Performance Rights in response to an Offer for Performance Rights, in
substantially the same form as set out in Schedule 2 or as otherwise approved by the Company
from time to time.
ASIC means the Australian Securities and Investments Commission.
Associated Body Corporate means:
(a)
a related body corporate (as defined in the Corporations Act) of the Company;
(b)
a body corporate which has an entitlement to not less than 20% of the voting Shares
of the Company; and
(c)
a body corporate in which the Company has an entitlement to not less than 20% of
the voting shares.
ASX means ASX Limited (ACN 008 624 691) or the Australian Securities Exchange, as the context
requires.
ASX Listing Rules means the official Listing Rules of the ASX as they apply to the Company from
time to time.
Blackout Period means a period when the Participant is prohibited from trading in the Company's
securities by the Company's written policies.
Board means the board of Directors of the Company or committee appointed by the Board for the
purposes of the Plan.
Business Day means those days other than a Saturday, Sunday or public holiday in the State and
any other day which the ASX shall declare and publish is not a business day.
Cash Payment means, in respect of a vested Performance Right, except as otherwise provided for
in the Offer for that Performance Right, a cash amount equal to the current Market Value of a
Share.
Cash Payment Facility has the meaning given to it in Rule 8.2.
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Change of Control means:
(a)
a bona fide Takeover Bid is declared unconditional and the bidder has acquired a
Relevant Interest in at least 50.1% of the Company’s issued Shares;
(b)
a court approves, under Section 411(4)(b) of the Corporations Act, a proposed
compromise or arrangement for the purposes of, or in connection with, a scheme for
the reconstruction of the Company or its amalgamation with any other company or
companies; or
(c)
in any other case, a person obtains Voting Power in the Company which the Board
(which for the avoidance of doubt will comprise those Directors immediately prior to the
person acquiring that Voting Power) determines, acting in good faith and in accordance
with their fiduciary duties, is sufficient to control the composition of the Board
Closing Date means the date on which an Offer is stated to close.
Company means Fulcrum Lithium Ltd (ACN 665 528 307).
Constitution means the constitution of the Company from time to time.
Corporations Act means the Corporations Act 2001 (Cth).
Director means any person occupying the position of a director of any Group Company (including
an alternate director or managing director appointed in accordance with the relevant
constitution).
Dispose means, in relation to a Share or Performance Right:
(a)
sell, assign, buy-back, redeem, transfer, convey, grant an option over, grant or allow a
Security Interest over;
(b)
enter into any swap arrangement, any derivative arrangements or other similar
arrangement; or
(c)
otherwise directly or indirectly dispose of a legal, beneficial or economic interest in the
Share or Performance Right,
(and Disposal has a corresponding meaning).
Eligible Participant means:
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(a)
a Director (whether executive or non-executive) of any Group Company;
(b)
a full or part time employee of any Group Company;
(c)
a casual employee or contractor of a Group Company; or
(d)
a prospective participant, being a person to whom the Offer is made but who can only
accept the Offer if an arrangement has been entered into that will result in the person
becoming an Eligible Participant under Rules (a), (b) or (c) above,
2
who is declared by the Board to be eligible to receive grants of Performance Rights under the
Plan.
Expiry Date means, in respect of a Performance Right, the date on which the Performance Right
lapses (if it has not already otherwise lapsed in accordance with the Plan).
Grant Date means, in relation to a Performance Right, the date on which the Performance Right is
granted.
Group means the Company and each other Associated Body Corporate.
Group Company means the Company or any Associated Body Corporate.
Holding Lock has the meaning given to that term in the ASX Listing Rules.
Market Value, in respect of a Share, means:
(a)
(b)
where the Company is not listed on the ASX, the more recent of:
(i)
the most recent cash or cash equivalent price at which Shares were issued or
sold for valuable consideration in a bona fide, arms’ length transaction (not
being Shares issued under this Plan); and
(ii)
the market value of a Share as determined by the Company, acting
reasonably, such valuation being no less than twelve (12) months old as at the
date the Market Value is to be determined; or
where the Company is listed on the ASX, the volume weighted average market price for
Shares traded on the ASX over the 10 most recent trading days on which the Shares were
traded prior to the day on which the Market Value is to be determined.
Marketable Parcel has the meaning given to that term in the ASX Listing Rules.
Nominee means a nominee of an Eligible Participant that is one of the following:
(a)
an immediate family member of the Eligible Participant or (subject to Board approval)
a trustee of an Eligible Participant’s family trust whose beneficiaries are limited to the
Eligible Participant and/or the Eligible Participant’s immediate family members;
(b)
a company whose members comprise no persons other than the Eligible Participant or
immediate family members of the participant; or
(c)
a corporate trustee of a self-managed superannuation fund (within the meaning of the
Superannuation Industry (Supervision) Act 1993) where the Eligible Participant is a
director of the trustee.
Offer means an invitation to treat made to an Eligible Participant to be granted one or more
Performance Rights under the Plan as set out in an Offer Document.
Offer Document means an offer document in substantially the same form as set out in Schedule
1 to this Plan, or such other form as approved by the Board from time to time consistent with the
Corporations Act.
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Participant means an Eligible Participant to whom Performance Rights have been granted under
the Plan or, if Rule 4.4 applies, a Nominee of the Eligible Participant to whom Performance Rights
have been granted under the Plan.
Performance Right means a right to be issued or transferred a Share (or paid a Cash Payment),
upon and subject to the terms of these Rules and the terms of any applicable Offer.
Plan means the plan as set out in this document, subject to any amendments or additions made
under Rule 14.
Redundancy means termination of the employment, office or engagement of a Relevant Person
due to economic, technological, structural or other organisational change where:
(a)
no Group Company requires the duties and responsibilities carried out by the Relevant
Person to be carried out by anyone; or
(b)
no Group Company requires the position held by the Relevant Person to be held by
anyone.
Relevant Interest has the meaning given in the Corporations Act.
Relevant Person means:
(a)
in respect of an Eligible Participant, that person; and
(b)
in respect of a Nominee of an Eligible Participant, that Eligible Participant.
Restricted Shares means Shares issued on the exercise of a Performance Right granted under the
Plan that the Board has determined are subject to a Restriction Period.
Restriction Period means the period during which a Share issued on the exercise of a Performance
Right cannot be transferred or otherwise dealt with in accordance with Rule 9.
Retirement means where a Relevant Person intends to permanently cease all gainful employment
in circumstances where the Relevant Person provides, in good faith, a written statutory
declaration to the Board to that effect.
Rules means the rules of the Plan set out in this document.
Security Interest means an interest or power:
(a)
reserved in or over an interest in any asset including any retention of title; or
(b)
created or otherwise arising in or over any interest in any asset under a security
agreement, a bill of sale, mortgage, charge, lien, pledge, trust or power,
by way of, or having similar commercial effect to, security for the payment of a debt, any other
monetary obligation or the performance of any other obligation, and includes, but is not limited
to:
(c)
any agreement to grant or create any of the above; and
(d)
a security interest within the meaning of section 12 of the Personal Property Securities
Act 2009 (Cth).
Severe Financial Hardship means that the Relevant Person is unable to provide themselves, their
family or other dependents with basic necessities such as food, accommodation and clothing,
including as a result of family tragedy, financial misfortune, serious illness, impacts of natural
disaster and other serious or difficult circumstances.
Share means a fully paid ordinary share in the capital of the Company.
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Shareholder means a holder of Shares.
Special Circumstances means:
(a)
a Relevant Person ceasing to be an Eligible Participant due to:
(i)
death or Total or Permanent Disability of a Relevant Person; or
(ii)
Retirement or Redundancy of a Relevant Person;
(b)
a Relevant Person suffering Severe Financial Hardship;
(c)
any other circumstance stated to constitute “Special Circumstances” in the terms of the
relevant Offer made to and accepted by the Participant; or
(d)
any other circumstances determined by the Board at any time (whether before or after
the Offer) and notified to the relevant Participant which circumstances may relate to
the Participant, a class of Participant, including the Participant or particular
circumstances or class of circumstances applying to the Participant.
State means New South Wales.
Takeover Bid means a takeover bid (as defined in the Corporations Act) to acquire Shares.
Total and Permanent Disability means that the Relevant Person has, in the opinion of the Board,
after considering such medical and other evidence as it sees fit, become incapacitated to such an
extent as to render the Relevant Person unlikely ever to engage in any occupation with the
Company or its Associated Bodies Corporate for which he or she is reasonably qualified by
education, training or experience.
Vesting Condition means, in respect of a Performance Right, any condition set out in the Offer
which must be satisfied (unless waived in accordance with the Plan) before that Performance
Right can be exercised or any other restriction on exercise of that Performance Right specified in
the Offer or in this Plan.
Voting Power has the meaning given to that term in Section 9 of the Corporations Act.
1.2
Interpretation
In this Plan unless the context otherwise requires:
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(a)
headings are for convenience only and do not affect the interpretation of this Plan;
(b)
any reference in the Plan to any enactment of the ASX Listing Rules includes a reference
to that enactment or those ASX Listing Rules as from time to time amended,
consolidated, re-enacted or replaced;
(c)
the singular includes the plural and vice versa;
(d)
any words denoting one gender include the other gender;
(e)
where any word or phrase is given a definite meaning in this Plan, any part of speech
or other grammatical form of that word or phrase has a corresponding meaning;
(f)
a reference to:
(i)
a person includes a natural person, partnership, joint venture, government
agency, association, corporation or other body corporate;
(ii)
a document includes all amendments or supplements to that document;
(iii)
a Rule is a reference to a Rule of this Plan;
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(g)
2.
(iv)
a law includes a constitutional provision, treaty, decree, convention, statute,
regulation, ordinance, by-law, judgment, rule of common law or equity and
is a reference to that law as amended, consolidated or replaced;
(v)
an agreement other than this Plan includes an undertaking, or legally
enforceable arrangement or understanding, whether or not in writing; and
(vi)
a monetary amount is in Australian dollars; and
when the day on which something must be done is not a Business Day, that thing must
be done on the following Business Day.
PURPOSE
The purpose of the Plan is to:
(a)
assist in the reward, retention and motivation of Eligible Participants;
(b)
link the reward of Eligible Participants to performance and the creation of Shareholder
value;
(c)
align the interests of Eligible Participants more closely with the interests of
Shareholders by providing an opportunity for Eligible Participants to receive Shares;
provide Eligible Participants with the opportunity to share in any future growth in
value of the Company; and
(d)
3.
provide greater incentive for Eligible Participants to focus on the Company's longer
term goals.
COMMENCEMENT AND TERM
(a)
This Plan will commence on the date determined by resolution of the Board and will
continue until terminated by the Board.
(b)
The Board may terminate the Plan at any time by resolution. Termination shall not
affect the rights or obligations of a Participant or the Company which have arisen under
the Plan before the date of termination and the provisions of the Plan relating to a
Participant’s Performance Rights shall survive termination of the Plan until fully
satisfied and discharged.
4.
OFFER OF PERFORMANCE RIGHTS
4.1
Offer
(a)
The Board may, from time to time, in its absolute discretion, make a written invitation to
any Eligible Participant (including an Eligible Participant who has previously received an
Offer) to apply for Performance Rights, upon the terms set out in the Plan and upon
such additional terms and conditions as the Board determines (Offer).
(b)
In exercising that discretion, the Board may have regard to the following (without
limitation):
(c)
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(i)
the Eligible Participant's length of service with the Group;
(ii)
the contribution made by the Eligible Participant to the Group;
(iii)
the potential contribution of the Eligible Participant to the Group; or
(iv)
any other matter the Board considers relevant.
For the avoidance of doubt, nothing in this document obliges the Company at any time
6
to make an Offer, or further Offer, to any Eligible Participant.
4.2
Offer Document
An Offer must be made using an Offer Document.
4.3
Personal Offer
Subject to Rule 4.4, an Offer is personal and is not assignable.
4.4
4.5
Nominee
(a)
Upon receipt of an Offer, an Eligible Participant may, by notice in writing to the Board,
nominate a Nominee in whose favour the Eligible Participant wishes to renounce the
Offer.
(b)
The Board may, in its discretion, resolve not to allow a renunciation of an Offer in
favour of a Nominee without giving any reason for that decision.
Minimum Contents of Offer Document
An Offer Document must advise the Eligible Participant of the following minimum information
regarding the Performance Rights:
4.6
4.7
(a)
the maximum number of Performance Rights that the Eligible Participant may apply for,
or the formula for determining the number of Performance Rights that may be applied
for;
(b)
the maximum number of Shares that the Participant is entitled to be issued or
transferred on the exercise of each Performance Right or the formula for determining
the maximum number of Shares;
(c)
any applicable Vesting Conditions;
(d)
any Restriction Period applied by this Plan or that the Board has resolved to apply to
Shares issued on exercise of the Performance Rights;
(e)
when Performance Rights will expire (Expiry Date);
(f)
the date by which an Offer must be accepted (Closing Date); and
(g)
any other information required by law or the ASX Listing Rules or considered by the
Board to be relevant to the Performance Rights or the Shares to be issued on the
exercise of the Performance Rights.
Number of Performance Rights
(a)
Subject to Rule 4.12, the number of Performance Rights to be offered to an Eligible
Participant from time to time will be determined by the Board in its discretion and in
accordance with applicable law and the ASX Listing Rules.
(b)
Each Performance Right will entitle the holder to be issued or transferred one Share (or
to be paid a Cash Payment in lieu of the issue or transfer of one Share) unless the Plan
or an applicable Offer otherwise provides.
No Consideration
Performance Rights granted under the Plan will be issued for nil cash consideration.
4.8
Vesting Conditions
A Performance Right may be made subject to Vesting Conditions as determined by the Board in
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its discretion and as specified in the Offer for the Performance Right.
4.9
Share Restriction Period
A Share issued on exercise of a Performance Right may be subject to a Restriction Period as
determined in accordance with Rule 9 of this Plan.
4.10
Deferred Taxation
Subdivision 83A-C of the Income Tax Assessment Act 1997 applies to the Plan except to the
extent an Offer provides otherwise.
4.11
Quotation of Performance Rights
Performance Rights will not be quoted on the ASX, except to the extent provided for by this Plan
or unless the Offer provides otherwise.
5.
ACCEPTANCE OF OFFER
5.1
Acceptance of Offer
An Eligible Participant (or permitted Nominee) may accept an Offer in whole or in part, by signing
and returning an Application Form to the Company no later than the Closing Date.
5.2
5.3
Board’s right to reject
(a)
The Board may accept or reject any Application Form in its absolute discretion.
(b)
Before accepting or rejecting the Application Form, the Board may require the applicant
to provide any information that the Board requests concerning the person's
entitlement to lodge an Application Form under this Plan.
(c)
The Board must promptly notify an applicant if an Application Form has been rejected,
in whole or in part.
Participant Agrees to be Bound
(a)
An Eligible Participant, by submitting an Application Form, agrees to be bound by the
terms and conditions of the Offer and the Application Form, the Plan and the Constitution
of the Company, as amended from time to time.
(b)
5.4
If the Board resolves to allow a renunciation of an Offer in favour of a Nominee, the
Eligible Participant will procure that the permitted Nominee accepts the Offer made to
that Eligible Participant and that both the Eligible Participant and the Nominee agree to
be bound by the terms and conditions of the Offer and Application Form, the Plan and
the Constitution of the Company, as amended from time to time.
Lapse of Offer
To the extent an Offer is not accepted in accordance with Rule 5.1, the Offer will lapse on the
date following the Closing Date, unless the Board determines otherwise.
6.
GRANT OF PERFORMANCE RIGHTS
6.1
Grant of Performance Rights
(a)
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